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Greene v. White

Court of Appeals of Kentucky

September 13, 2019

MARCUS GREENE APPELLANT
v.
RANDY WHITE, WARDEN, KENTUCKY STATE PENITENTIARY APPELLEE

          APPEAL FROM LYON CIRCUIT COURT HONORABLE CLARENCE A. WOODALL, III, JUDGE ACTION NO. 17-CI-00146

          BRIEFS FOR APPELLANT: Marcus Greene, pro se Eddyville, Kentucky

          BRIEF FOR APPELLEE: Brenn O. Combs Frankfort, Kentucky

          BEFORE: DIXON, JONES AND K. THOMPSON, JUDGES.

          OPINION

          THOMPSON, K., JUDGE.

         Marcus Greene, pro se, appeals from the Lyon Circuit Court's order of dismissal of his petition seeking a declaration of rights for failure to state a claim on which relief can be granted. The circuit court determined Greene failed to exhaust his administrative remedies in challenging a finding of guilt in a prison disciplinary matter, which resulted in a restriction of his visitation privileges with his wife and adult daughter.

         On March 28, 2017, a disciplinary report form was filed on Greene in KSP-2017-00709. Internal affairs supervisor Sergeant James Beavers completed an investigation of Greene and another inmate and determined through information provided by a confidential informant and recorded telephone calls between Greene and his wife and Greene and his daughter that Greene conspired with his daughter to smuggle narcotics into the Kentucky State Penitentiary via the visitation room and Greene conspired with his wife for her to collect money outside of the prison from the sale of the narcotics to other inmates. Sergeant Beavers determined that the other inmate had his mother send Greene's wife $100 to pay for narcotics.

         On May 26, 2017, [1] the adjustment committee held a hearing on KSP-2017-00709. Greene was charged with Corrections Policies and Procedures (CPP) 15.2(II)(C)(Category VI)(3), more informally known as category 6-03, "[p]ossession or promoting of dangerous contraband[.]" By virtue of CPP 15.2(II)(E)(1)(c), which provides that "[a] person may be found to have committed the violation listed in this policy if he . . . [c]onspires with another or others to commit the violation[, ]" the charge was amended to category 6-03 inchoate.

         The adjustment committee reviewed the initial report, the recorded phone calls and the confidential report. Greene admitted to making the calls and during one call referring to money as "whatchamacallit" and "dust." Greene also admitted to making the statement that he was going to "get him to give her a bet too" and that this statement was about money. The adjustment committee deemed the confidential informant reliable and relied upon the information contained in the confidential report to establish that there was some evidence of guilt.

         The adjustment committee found Greene guilty and punished him by assigning him to thirty days of disciplinary segregation (restrictive housing), which had already been completed at the time of the hearing. Greene did not lose any "good time" credit.

         Separate from the committee's punishment, Greene's wife and daughter were restricted from visiting Greene.[2] Greene claims this was based on the outcome of Greene's hearing, by which we interpret him to mean that this was done pursuant to CPP 16.1(II)(L)(1), which provides that "[a]n inmate receiving disciplinary action in accordance with CPP 15.2 for the following rule violations shall not have visiting privileges reinstated: 1. Smuggling or attempting to smuggle dangerous contraband into an institution[.]"[3]

         Greene filed a petition for declaration of rights and injunctive relief against Warden Randy White (the warden). Greene argued he was denied due process where there was no evidence he conspired to possess or promote dangerous contraband and the subsequent action of restricting his visitation with his wife and daughter was disproportionate. He argued that the prison did not follow its own regulations as to how information by a confidential informant is to be used in order to support a finding of guilt pursuant to CPP 9.18 (II)(D)(3), (6) and (7). Greene argued that for this reason, the confidential informant's information could not be relied upon and, therefore, there was no information from which to conclude that Greene's slang references to money were connected to a conspiracy to introduce dangerous contraband into the prison. Greene argued the denial of his visitation privileges created "an atypical and significant hardship" when it resulted from unproven accusations and there was no real threat to security at the prison.

         The warden filed a motion to dismiss Greene's petition for "failure to state a claim upon which relief can be granted" pursuant to Kentucky Rules of Civil Procedure (CR) 12.02(f), on the basis of Greene's failure to exhaust his administrative remedies or attach proof of such exhaustion as required by Kentucky Revised Statutes (KRS) 454.415.

         In Greene's response, he argued he did exhaust his administrative remedies and the warden was aware of that fact because he had access to his case file. Greene claimed he attached a copy of his legal documents to the petition when he mailed it.[4] Greene then attached portions of his disciplinary reports and a copy of the letter which constituted his appeal.

         On the final page of Greene's disciplinary report, it stated that the appeal was received on June 6, 2017, and that on June 7, 2017, the warden concurred with the adjustment committee because he "found sufficient evidence to support their decision of guilt."

         In the letter from Greene to the warden, incongruously dated April 21, 2017, Greene stated he was appealing the adjustment committee decision, KSP 2017-00709, hearing date May 26, 2017.[5] The substance of this letter is specific to these charges and how Greene believed the recorded phone calls were insufficient for a finding of guilt.

         The circuit court granted the warden's motion to dismiss. In its order of dismissal, the circuit court noted that Greene's response to the warden's motion to dismiss included the attachment of partial copies of the disciplinary reports and an unsigned letter dated April 21, 2017, which predated the hearing held on May 26, 2017, and indicated that he was "once again appealing" from an adjustment committee decision. The circuit court stated, "[d]espite the additional opportunity to supplement the record with proof of exhaustion of administrative remedies, [Greene] has failed to do so" and dismissed Greene's petition with prejudice.

         After the motion to dismiss was granted, but apparently before the warden received his copy of the order, the warden filed an amended motion to dismiss. The warden acknowledged that Greene provided sufficient proof of his exhaustion of administrative remedies and raised the new argument that Greene still failed to state a claim upon which relief can be granted because he received due process when there was "some evidence" of record to support the disciplinary action taken by the adjustment committee.

          On appeal, Greene argues the circuit court abused its discretion by failing to correctly apply the due process requirement that there be "some evidence" to support the adjustment committee's finding of guilt. Greene argues there was no basis provided as to how Sergeant Beavers concluded that Greene was conspiring to bring narcotics into the prison because there were no conversations detailing how any alleged drugs were supposed to be smuggled into the prison. Greene argues it was never established that he possessed any contraband and his phone conversations were not sufficient to establish he instructed his wife or daughter to bring in any contraband. He attempts to use Kentucky statutory provisions which relate to committing crimes to argue that he could not be found guilty. Finally, Greene argues the circuit court abused its discretion by granting the warden's motion to dismiss after he provided proof that he exhausted his administrative remedies.

         The warden argues that affirmance is appropriate not because Greene failed to exhaust his administrative remedies but because Greene failed to state a claim upon which relief could be granted where there was "some evidence" to support the discipline imposed on him.

         We agree with Greene that the circuit court erred in dismissing for failure to exhaust administrative remedies. Greene provided uncontested proof that he appealed to the warden, and the warden made a ruling on this appeal. Therefore, because exhaustion was established, the circuit court should not ...


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